The prayer in the Writ Petition is for a writ of Certiorari calling for the records of the respondents relating to the order of the 1st respondent in K.Dis.4446/2009/E1 dt.11.1.2010 confirming the order of the 2nd respondent in R.Dis.2328-07(C) dt.29.12.2008 and quash the same.
2. The case of the petitioners is that the petitioners and the fourth respondent are the sons of one late Chinnanna Gounder. Apart from these three sons, two other sons also were there and one out of the two already died and the remaining one is not in the picture in the current issue raised in this Writ Petition.
3. According to the petitioners, the father of the petitioners had been the owner of a number of landed properties at their native village and during his lifetime, several new properties also had been acquired by him and some of the properties, in fact had been acquired in the name of his sons including the petitioners as well as the fourth respondent. While so, in order to make some family arrangements to inherit the family properties which are large extent of landed properties, some oral partition had taken place and based on which, properties have been partitioned. Accordingly, separate pattas were given by sub-dividing each of the properties and to that effect, the Tahsildar concerned, i.e., the third respondent had issued a detailed proceedings on 29.05.1989. In the said proceedings of the Tahsildar, several properties had been sub-divided and patta have been given separately for the petitioners as well as the fourth respondent.
4. In so far as the present issue is concerned, it revolves only in the property situate at Survey No.20/3C2 at Chinna Soragai Village, Mettur Taluk, Salem District. According to the said proceedings of the Tahsildar dated 29.05.1989, the said property at survey No.20/3C2 had been sub-divided into three properties namely, 20/3C2A, 20/3C2B and 20/3C2C. The said three sub-divided properties had been entrusted to first and second petitioners as well as the fourth respondent. In other words, 20/3C2A was given to the fourth respondent, 20/3C2B was given to the second petitioner and 20/3C2C was given to the first petitioner.
5. According to the petitioners, as per the said oral partition and as per the subsequent proceedings of the Tahsildar concerned, dated 29.05.1989, parties had acted upon as per the said oral partition and the proceedings of the Tahsildhar and had been enjoying the respective properties inherited by them, including the properties which is in question i.e., 20/3C2. After some years, on 04.04.2007, the fourth respondent had filed an appeal before the second respondent under Section 12 of the Patta Pass-Book Act,1983(Tamil Nadu Act 4 of 1986)(herein after referred to as, Act). The said appeal filed by the fourth respondent questioning the sub-division and entrustment of property at Survey No.20/3C2 was heard and decided by the second respondent in their order dated 29.12.2008. In the said order, the second respondent after having set-aside the order passed by the Tahsildar dated 29.05.1989, in so far as the said property, i.e., 20/3C2, had directed the Tahsildar concerned to record separate Patta for the entire land of 0.85.5 ares at Survey No.20/3C2 in the name of the fourth respondent.
6. Aggrieved by the said order of the second respondent, the petitioners had preferred a revision before the first respondent on 31.01.2009, wherein the petitioners had raised objections and grounds against the order passed by the second respondent. The said revision filed by the petitioners was taken into consideration by the first respondent. However, without going into the merits of the issue raised by the revision petitioners and without hearing the parties concerned, by giving a reasonable opportunity of being heard, the first respondent has passed a cryptic order by the impugned proceedings in MM 446/09/E1 dated 11.01.2010. In the said order which is impugned herein, the first respondent has simply rejected the revision(appeal), on the only ground that along with the said revision/appeal, the original order passed by the second respondent and the connected records had not been submitted by the revision petitioners (that is the petitioners before this Court). Challenging the said order of the first respondent dated 11.01.2010, the petitioners have approached this Court with the above said prayer.
7. Mr. Kandhan Doraisami, the learned counsel appearing for the petitioner, would contend that family partition had taken place, of course, orally prior to 1989. According to him, as per the family practice, though a number of properties had been acquired by the family, during the time of the father of the petitioners who was the kartha of the family, some of the properties acquired for the family had been purchased or acquired in the name of his sons, i.e., the petitioners as well as the fourth respondent. Even though, a number of properties had been purchased or acquired either in the name of the father of the petitioners or in the name of the petitioners or fourth respondent, all those properties had to be treated only as family properties and therefore accordingly, a oral partition had taken place before 1989. In respect of every such property irrespective of the fact whether it stands in the name of kartha of the family or the petitioners or the fourth respondent due partition had been taken place and accordingly, the partitioned properties have been entrusted to the sons, including the petitioners as well as the fourth respondent.
8. The learned counsel would further submit that insofar as the property situated at Survey No.20/3C2 is concerned, it is the total extent of 0.85.5 ares. The same has been partitioned with three portions and sub-divided as 20/3C2A, 20/3C2B and 20/3C2C. As referred to earlier, the said partitioned properties of 20/3C2 had been entrusted respectively to fourth respondent and the petitioners.
9. The learned counsel for the petitioner would also submit that in so far as the sub-divided portion namely, 3C2B is concerned, there is a dwelling house where the second petitioner is residing with his family. All these factors are known to everyone, including the fourth respondent.
10. The learned counsel for the petitioner would also submit that based on such oral partition, the Tahsildar concerned, i.e., third respondent herein had issued a proceedings dated 29.05.1989 wherein separate pattas have been registered in the name of the petitioners as well as the fourth respondent and in so far as the said property namely 20/3C2 is concerned, as per the oral partition, the portion belonging to the petitioners 1 and 2 i.e., 3C2C and 3C2B had been given to them respectively and 3C2A of Survey No.20 was given to the fourth respondent. As per the said proceedings of the Tahsildar dated 29.05.1989, the learned counsel for the petitioner submits that, the parties have acted upon for several years. However, all of a sudden on 04.04.2007 only, an appeal was filed by the fourth respondent before the second respondent questioning the partition taken place in so far as it relates to the property at 20/3C2 alone. The second respondent erroneously decided the said appeal in favour of the fourth respondent by order dated 29.12.2008 as against which the petitioners had rightly preferred revisions / appeal before the first respondent.
11. In this regard, the learned counsel for the petitioner would also invite the attention of this court to the relevant provision of the Pass-Book Act as well as the Rules made thereunder. According to the learned counsel, Sections 12 and 13 is the relevant provision for preferring appeal as well as the revision which reads thus:
"12. Appeal.- Any person aggrieved by an order made by the Tahsildar under this Act may, within such period as may be prescribed, appeal to such authority as may be prescribed and the decision of such authority on such appeal shall subject to the provisions of section 13, be final.
13. Revision.- Any officer of the Revenue Department not below the rank of District Revenue Officer authorised by the Government, by notification in this behalf for such area as may be specified in the notification, may of his own motion or on the application of a party call for and examine the records of any Tahsildar or appellate authority within his jurisdiction in respect of any proceeding under this Act and pass such orders as he may think fit:
Provided that no such order prejudicial to any person shall be made unless he has been given a reasonable opportunity of making his representation."
He would also rely upon Rule 14 of the Tamil Nadu Patta Pass-Book rules 1987 which reads thus:
"14. Appeal.- An appeal against any order of the Tahsildar passed under the Act shall be filed before the officer in charge of Revenue Division in whose jurisdiction the property lies within a period of thirty days from the date of the receipt of the order."
12. In view of the said Rule 14, if at all any appeal has to be filed against the order passed by the Tahsildar concerned, such appeal should be made within a period of 30 days from the date of passing the order. In this regard, the learned counsel would further submit that even though the third respondent passed an order dated 29.05.1989, appeal was preferred only on 04.04.2007, almost 18 years after passing the order. Though a 30 days limitations has been given, unmindful of the same, the second respondent had entertained the appeal and in fact, after hearing both sides, an order on merits was also passed on 29.12.2008. Therefore, under Section 13 of the Act the petitioners have filed the revision before the first respondent. 13. Even though, revision was filed immediately, on receipt of the order from the second respondent office, the said revision has been rejected almost after one year by the first respondent through the impugned order where the first respondent has simply rejected the appeal/revision filed by the petitioners not on merits, but on the reason that along with the revision, no original order passed by the second respondent as well as the connected documents had been filed.
14. In this regard, the learned counsel appearing for the petitioner, would draw the attention of this court to Section 13 of the Act which has already been reproduced herein above. According to the learned counsel, the Revisional Authority is having the suo motu power to revise any order passed by the Original Authority or Appellate Authority. Also, the revision can be entertained on the application of a party. In either way, the Revisional authority has to call for and examine the records of any Tahsildar or Appellate Authority within his jurisdiction, in respect of any proceedings, under the Act and he can pass orders as he thinks.
15. Here in the case on hand, assuming that the Original order passed by the Appellate Authority was not accompanied with the revision filed by the petitioners, the revision ought not to have been rejected in the manner by which the same has been rejected now. In fact, the revision ought to have been heard either by giving a notice to the petitioners inviting those documents to be produced by them otherwise, the Revisional Authority could have called for the records from the Tahsildar or Appellate Authority concerned and examined the same. Without resorting to any of such mode as has been indicated in Section 13 of the Act, the Revisional Authority has passed a cryptic order without going into the merits of the issue raised by the revision petitioners that too without giving any opportunity of being heard which according to the learned counsel for the petitioner is a mandatory one in view of the proviso to Section 13 of the Act. Therefore, the order impugned is liable to be interfered with.
16. Per contra, Mrs. Nalini Chidambaram, the learned senior counsel appearing for the fourth respondent would submit that the contentions raised by the petitioners and the arguments advanced on their behalf before this Court to state that a oral partition had taken place in the family of the petitioners and fourth respondent, is totally a false statement and according to her, no such oral partition had taken place.
17. The learned senior counsel would further contend that insofar as the property which is in question i.e, at Survey No. 20/3C2 is concerned, it is a self acquired property of the fourth respondent and he purchased the property in his name and had been all along enjoying the same. When that being so, the said property ought not to have been partitioned or ought not to have been shown in the order of the Tahsildar dated 29.05.1989 as if it has been partitioned between the petitioners and the fourth respondent. According to the learned senior counsel for the fourth respondent, no such partition had taken place and the said property had never been partitioned as claimed by the petitioners. Only some time, after the passing of the order by the Tahsildar concerned, the fourth respondent came to know that the said property which is in question also had been included in the order of the Tahsildar dated 29.05.1989. Therefore, rightly the fourth respondent had filed an appeal against the said order of the Tahsildar before the Appellate Authority, namely the second respondent herein, who after having elaborately considered the merits of the issue raised by the fourth respondent had allowed the appeal by order dated 29.12.2008. Therefore, according to the learned senior counsel, there is absolutely no infirmity in the said order passed by the second respondent.
18. The learned senior counsel would also submit, if at all the petitioners are aggrieved by the order passed by the second respondent, it is their right to prefer an appeal or revision before the Revisional Authority. However, it is a basic requirement that when a revision or appeal is filed assailing any order passed by the Original Authority, the same should have been accompanied with original order. If no such original order which is under challenge is filed before the Revisional or Appellate Authority, then the said revision or appeal cannot be termed as an appeal or revision in the eye of law. Therefore, only in that context, the first respondent has rejected the said appeal/revision filed by the petitioners on the ground that not even the original order passed by the second respondent was part of the appeal but also no documents in support of the case of the petitioners have been filed and therefore, the first respondent has rightly rejected the same.
19. When the appeal itself is not worthy to be entertained, in view of the fact that there is no original impugned order filed along with the appeal/revision and no documents had been filed, the first respondent need not give any further opportunity to the petitioner, nor the first respondent is obliged to call for any records either from the Appellate Authority or from the Original Authority i.e. the Tahsildar as has been contemplated under Section 13 of the Act. Therefore, there is absolutely no infirmity in the order passed by the Revisional /Appellate Authority which is impugned herein.
20. The learned senior counsel would also make further contention that if at all the petitioners are aggrieved by the order which is impugned herein, they could have very well filed a review before the very same authority, who passed the impugned order, instead they invoked the provision of
Article 226 of the Constitution by filing the present writ petition before this Court which according to the learned senior counsel, is unwarranted and therefore, on that ground also the writ petition is liable to be rejected.
21. The learned Government Advocate, who is appearing for the official respondents would also contend that in view of the defect in filing the revision/appeal by the petitioners without even the original order which was assailed in the revision/appeal, the first respondent had no other option except to reject the same and therefore, the said order passed by the first respondent which is impugned herein cannot be found fault with.
22. This Court has considered the rival submissions made by the learned senior counsel as well as the learned respective counsel appearing for the parties.
23. Insofar as the merits of the claim made by both sides i.e., the petitioners as well as the fourth respondent with regard to the property which is in question, this Court do not want to go into the merits of such claim. Since, the order of the first respondent dated 11.1.2010 is under challenge in this writ petition where the prime ground as raised by the petitioners is that the said order was not passed on merits and it was rejected on a flimsy reason that the original order and other documents were not annexed with the revision/appeal, whether the said order as well as other connected papers have been annexed with the revision or not, also need not be gone into by this Court at this stage. The reason being that as has been rightly pointed out by the learned counsel appearing for the petitioner, under Section 13 of the Act, the Revisional Authority has been vested with power to take up any issue by way of suo motu proceedings and also under the revisional power, application of the party can also be entertained by way of revision and in both counts, the Revisional Authority can call for the records and examine the same from the Tahsildar or Appellate Authority concerned.
24. Here in this case on hand, if at all, the first respondent found that the revision was lack of some documents including the original order which was put under challenge, either the first respondent could have issued a notice to the petitioner requiring them to produce those documents, otherwise suo motu, the first respondent could have called for the records from the Appellate Authority or Original Authority and after perusal of the same, the revision could have been decided.
25. It is also provided under Section 13 of the Act by way of proviso that no order prejudicial to the interest of any person shall be made unless such person is given a reasonable opportunity of making his representation. When the Section itself mandates that reasonable opportunity must be given to the party without which, no order prejudicial to the interest of the party can be passed by the Revisional Authority and such a mandatory requirement since has not been followed by the first respondent before passing the present impugned order, this Court is of the considered view that the impugned order, is liable to be interfered with.
26. In the result, for the sole ground of violation of principle of natural justice and also for the violation of mandatory requirement as envisaged at Section 13 of the Act, the impugned order is quashed. The matter is now, remitted back to the Revisional Authority i.e, the first respondent for reconsideration.
27. In this regard, the petitioner shall be at liberty to file whatever the supporting documents in his favour including the original order which was under challenge, before the Revisional Authority and file those documents and the order before the first respondent within a period of two weeks from the date of receipt of a copy of this order. On receipt of those documents from the petitioner, the Revisional Authority shall take up the revision and decide the same on merits and in accordance with law ofcourse after giving due opportunity of being heard to the petitioners as well as the fourth respondent and at any rate pass final orders on the revision within a period of eight weeks, thereafter.
28. The learned counsel for the petitioner now submits that the original order passed by the second respondent dated 29.12.2008 is not readily available with the petitioner, however, a copy of the same is available and therefore, he would be producing the same along with other connected documents before the Revisional Authority. Since the Revisional Authority has got the power to call for the original records from the Appellate Authority, this Court feels that if the photocopy of the order passed by the Appellate Authority dated 29.12.2008 is produced by the petitioners, the same shall be accepted by the 1st respondent and the above said direction shall be complied with.
29. Writ petition is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.